Ex Parte Cashman

671 S.W.2d 510, 1984 Tex. Crim. App. LEXIS 666

• Court: Court of Criminal Appeals of Texas
• Decided: May 23, 1984
• Docket: 69128
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

A jury convicted applicant of robbery in Cause No. 30,801-205 and enhanced his punishment by one prior conviction, a conviction for robbery in Cause No. 59770 from the Second Judicial District Court, Denver County, Colorado. Applicant was sentenced to fifty years’ confinement. On appeal we affirmed the judgment in a per curiam opinion (Cause No. 59,063, September, 1980).

In his application, applicant attacks the prior conviction (Cause No. 59770) used to enhance his punishment. Applicant has provided the trial court with a certified copy of an order vacating the judgment and conviction in Cause No. 59770. This order is dated January 19,1983, and signed by Sandra I. Rothenberg, Judge of the Denver District Court.

Because it appears that the prior conviction relied on for enhancement purposes has been voided, the applicant is entitled to relief. Ex parte Garcia, 578 S.W.2d 141 (Tex.Cr.App.1979). Furthermore, because a jury was elected to assess punishment in this cause (No. 30,801-205), the applicant is entitled to have a new trial on the issue of guilt as well as punishment. Ex parte Nivens, 619 S.W.2d 184 (Tex.Cr.App.1981); Ex parte Howeth, 609 S.W.2d 540 (Tex.Cr. App.1980).

The relief prayed for is granted. The conviction in Cause No. 20,801-205 is set aside, and the applicant is ordered released to the Sheriff of El Paso County to answer the indictment in Cause No. 30,801-205, with the enhancement paragraph as to said Cause No. 59770 from Denver County, Colorado, dismissed.

It is so ordered.

ONION, P.J., and W.C. DAVIS, J., dissent. MILLER, J., not participating.